[2025] EWHC 1967 (Admin)

Each of these challenges arise from the inspector’s consideration of ground (a) under section 174(2) of the appeal before him, namely that in respect of any breach of planning control which may be constituted in the notice, planning permission ought to be granted. The inspector set out his approach in decision letter (DL) [16]:

“At the start of the Hearing, the appellant indicated that he only intended to pursue two of the potential sixteen permutations that had been identified, namely: (1) two flats in the main building as extended, with the outbuilding not in residential use and (2) main building as extended as a single dwellinghouse, with the outbuilding ancillary to that dwelling. I have therefore focused my consideration of this ground of appeal on the two permutations now favoured by the appellant but will also consider below all remaining permutations including the full deemed planning application that arises under Section 177(5) of the 1990 Act.”

The inspector found that permutation 1 would not provide an acceptable standard of living conditions for the occupiers in terms of internal space, external space, outlook and privacy and therefore would conflict with policies D6, SC5 and SC6 of London Borough of Hounslow Local Plan and with its Supplementary Planning Document (SPD). In respect of permutation 2, the inspector found that the external amenity spaces would fall some 16.6 m² shy of the minimum figure of 75 m² for a dwelling with five habitable rooms as required by Figure SC5.2 in policy SC5. He then went on to say this at DL[50]:

“Furthermore, the layout of that amenity space is not suitable in terms of shape, aspect and siting as required by Figure SC5.2. As described above, the space is effectively in two corridors that are perpendicular to each other to form an ‘L’ shape. The ‘corridor’ of amenity space that runs east-west is sandwiched between the single-storey extension and the outbuilding. The ‘corridor’ of amenity space that runs north-south is sandwiched between the flank wall of the main dwelling and the brick east boundary wall. To a greater or lesser degree, both spaces are oppressive to be in. Part of the space that runs north-south is overshadowed by the large tree in the neighbouring property, such that it would receive little or no sunlight. The other part is directly overlooked. Moreover, there is not a single square or rectangular area that could form a usable garden space, especially for children to play in. The latter is an important consideration in relation to a dwelling potentially having four bedrooms and occupied by up to six people.”

The inspector then went on to consider permutation 3 and dealt with it in this way:

“Permutation 3: main building as extended as a single dwellinghouse, with no outbuilding.

“68.

This is not a permutation favoured or advanced by the appellant. However, the single-storey rear extension is part of the matters stated in the notice and, in the light of the judgment of the High Court, is nonetheless one that I must consider.

69.

In this scenario, the dwelling as extended would have a floor area of some 107m². With the outbuilding removed, the total garden area would be some 104m². Some of that garden space would suffer from the same defects highlighted with the previous permutations in terms of being overshadowed, overlooked and not particularly usable. However, with the outbuilding removed, a broadly rectangular external space measuring some 7.2m by 10.4m would be created. This would provide approximately 75 m² of usable external amenity space which would not be in shadow and would not be directly overlooked, to which the less usable external space would be an addition. Applying the benchmark standards set out in Figure SC5.2, that amount of usable external space would be suitable for a dwelling with 5 habitable rooms and over. In my view, this permutation would provide an acceptable standard of accommodation.

70.

In granting planning permission for this permutation, it is open to me to impose a condition removing the permitted development rights provided by Class E, Part 1, Schedule 2 of the GPDO. Such a condition would meet the relevant tests set out in the Planning Practice Guidance (PPG). In particular, it would be relevant to the development to be permitted and necessary to overcome the harms that I have identified in relation to Permutation 2, in which the single-storey extension and the outbuilding are both in place. It would of course be open to the appellant to apply for planning permission for an outbuilding, which the Council could then determine on its own merits.

71.

I conclude that Permutation 3 would accord with the development plan. Accordingly, I conclude that planning permission ought to be granted for this Permutation, subject to a condition removing certain permitted development rights.”

It was not disputed before me that the inspector was right to consider permutation 3, even though it was not advanced by either party. This is because it was an obvious alternative which would have overcome the planning difficulties at less cost and disruption then upholding the notice as amended (see Tapecrown Ltd v First Secretary of State [2006] EWCA Civ 1744 and Moore v Secretary of State for Communities and Local Government & Anor [2012] EWCA Civ 1202).

The inspector then went on to consider other permutations but found no evidence that any of them which included subdivision of the main dwelling would accord with the external amenity space standards set out in SC5. He then added at DL[75]:

“As part of that, I have considered whether a smaller outbuilding would be acceptable within those permutations, particularly in terms of making more usable external space available. A smaller outbuilding than that existing could still form part of the matters stated in the notice. However, I do not have any details relating to a smaller outbuilding and it would not be appropriate for me to impose a smaller outbuilding on the appellant (or for that matter the Council) without having such details available.”